Convincing elites, controlling elites

Date22 February 2011
Pages175-211
DOIhttps://doi.org/10.1108/S1059-4337(2011)0000054010
Published date22 February 2011
AuthorDouglas NeJaime
CONVINCING ELITES,
CONTROLLING ELITES
Douglas NeJaime
ABSTRACT
Within the legal mobilization framework, sociolegal scholars identify elite
support as a key indirect benefit of litigation. Court-centered strategies
generate support from influential state and private actors, and this support
helps a movement to achieve its goals. Instead of assuming elite support to
be a decidedly positive step in a movement’s trajectory, a more contextual
analysis situates elite support as a complex, dynamic factor that movement
advocates attempt to manage. Such support may at times create political
and legal risks that jeopardize a movement’s progress. My analysis of the
marriage equality movement suggests a tentative typology with which to
approach elite support: Elite support appears generally productive for a
movement when it leads to action consistent with the movement’s strategy.
On the other hand, elite support may pose significant risk when it prompts
action inconsistent with the movement’s strategic plan, even if it is
consistent with the movement’s substantive positions.
INTRODUCTION
Social movement activists frequently mobilize law on behalf of their
constituents and deploy court-centered strategies to bring about change.
Special Issue: Social Movements/Legal Possibilities
Studies in Law, Politics, and Society, Volume 54, 175–211
Copyright r2011 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2011)0000054010
175
These activists rely on law, and more specifically on litigation, not merely to
achieve judicially announced rights, but also to cultivate productive indirect
effects. Within this framework of legal mobilization, sociolegal scholars
point to elite support as a key indirect benefit of court-centered strategies.
These scholars convincingly demonstrate how law-based, rights-claiming
tactics may generate support from both state and private elite actors,
including government officials and lawyers, media elites, professionals,
foundation heads, and other private citizens with power and resources.
1
(McCann, 2004). This support – the literature either shows or assumes –
helps a movement to achieve its social reform goals. When government
actors sympathize with a movement’s claims, they may implement policy
consistent with those claims. When private elites embrace a movement’s
cause, they may accommodate movement demands, positively influence
public opinion, and contribute financial resources.
A close examination of elite support in the lesbian, gay, bisexual, and
transgender (LGBT) rights context, however, suggests the need for a more
nuanced approach to elite support within the legal mobilization framework.
Instead of assuming elite support to be a decidedly positive step in a
social movement’s trajectory, a more contextual analysis conceptualizes elite
support as a complex, dynamic factor. While such support often aids a social
movement’sprogress, itmight also posesignificant legaland politicalrisks to the
movement.Elite support may, counterintuitively, undermine carefullyplanned
litigation and legislative campaigns, provoke and fuel countermovement
mobilizationand fundraising,negativelyimpact publicopinion, forceadvocates
to engagevenues they had chosen to avoid, and provoke other elites to explicitly
oppose movement demands. Accordingly, socialmovement advocates do not
merely create opportunities for elite support and then disengage.Rather, they
attempt to manage elite support to translate it into productive action and to
prevent it from actually hinderingmovement progress.
2
To better understand the contingent nature of elite support, this chapter
analyzes five instances of supportive elite action from the marriage equality
movement.
3
My analysis suggests that elite support seems most unambigu-
ously productive for a movement when it leads to action that is strategically
(or procedurally) consistent with the movement’s planned trajectory, even if
there is some substantive or doctrinal dissonance. On the other hand, elite
support may pose significant risk when it prompts action that is strategically
(or procedurally) inconsistent with the movement’s trajectory, even if the
action is substantively or doctrinally consistent with the movement’s
position.
4
Here I am describing the choice to undertake some action –
whether legislative, executive, or litigative – as strategic or procedural, and
DOUGLAS NEJAIME176
the claims or reasons asserted in support of the action as substantive or
doctrinal. The marriage equality context shows that supportive elites do in
fact depart from the social movement script and that their elite status
heightens the impact of such moves. While I cannot make generalizable or
causal claims regarding the conditions under which elite support threatens
movement goals, the tentative typology I construct demonstrates, at a
minimum, the need for more attention to the operation of elite support and
suggests possible questions for future sociolegal research.
My analysis also has implications for the broader social movement field,
from which legal mobilization scholarship takes many of its cues. Social
movement scholars highlight the increasing professionalization and mass
organization of movements, and the corresponding focus on appeals to
institutional elites (Meyer & Tarrow, 1998). But unlike the optimistic account
of elite support in the legal mobilization framework, the conventional
account in social movement theory is largely pessimistic. While elite action
is generally deemed necessary for movement gains (Amenta & Caren, 2004;
Barkan, 1984; Santoro & McGuire, 1997; Wolfson, 2001), social move-
ment theory historically has claimed that elite alliances and movement
professionalization bring with them institutionalized tactics that replace
disruptive protest activity and ultimately lead to the cooptation and
deradicalization of the movement (Piven & Cloward, 1977). In this account,
elites give concessions that provide merely symbolic gains; at the same
time, they integrate movement leaders into institutional settings, thereby
channeling protest in ways that prop up the existing political structure
(Piven & Cloward, 1977). Even those scholars who pull back from this one-
sided account often have maintained that elite support and movement
formalization generally channel social movement goals and tactics into more
moderate, less disruptive avenues (Jenkins & Eckert, 1986; Wolfson, 2001).
An emerging body of social movement scholarship, however, questions the
traditionally pessimistic account of professionalization and elite state and
private support (Banaszak, 2005, 2010; Cress & Snow, 1996; Staggenborg,
1991). This work shows that professionalization and formalization may aid a
movement by providing stability and facilitating coalitions (Staggenborg,
1988). More importantly for my analysis, Banaszak (2010) and Staggenborg
(1991) both show that elite action functions as a dynamic force in social
movements; contrary to conventional theoretical assumptions, state actors
and movement elites may at times deploy confrontational (rather than
institutional) tactics, or may use institutional tactics in confrontational ways.
5
In pointing out the need for more nuanced and contextual analysis, this
work shares common ground with my intervention in the legal mobilization
Convincing Elites, Controlling Elites 177

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